TMI Blog2011 (8) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... ding interest and imposition of penalty also does not arise. Therefore the impugned order is set aside. The appeals are allowed - E/3210/2000-Mum and E/3225, 3226, 3227/2000-Mum - A/773-776/2011-WZB/C-II(EB) - Dated:- 2-8-2011 - S/Shri Ashok Jindal, Sahab Singh, JJ. REPRESENTED BY : Shri M.H. Patil, Advocate for the Appellant. Shri V.K. Agarwal, SDR, for the Respondent. [Order per : Ashok Jindal, Member (J)]. These appeals are filed by the appellants against the adjudication order dt. 21-6-2000 wherein the adjudicating authority has held that process of conversion of M.S. rounds into M.S. bright bars by the process of cold drawing amounted to manufacture. 2. This is the second round of litigation. In earlier round of litigation, this Tribunal had allowed the appeals of the appellant holding that the Bright-drawing is a cold process in which bars or rods, whether or not in irregularly would coils, are drawn (at relatively low speed) through one or more dies to obtain products of smaller or different shaped section . Therefore, considering the judgment cited by the learned Counsel in the case of Vee Kayan Industries v. C.C.E. - 1996 (83) E.L.T. 262 (S.C.) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding as to change in form or shape not sufficient to hold drawing of round bar through a slight narrow diameter resulting in a new commodity. As there is no evidence or material adduced to show that in commercial circle, the bars and bright bars are different. Therefore, the process of conversion of M.S. Round into Bright bars does not amount to manufacture. He further submitted that the same view has been taken by the Hon ble Apex Court in the case of Collector of Central Excise v. Technoweld Industries reported in 2003 (155) E.L.T. 209 (S.C.). He further submitted that the duty is cast on the revenue to prove that the activity undertaken by the appellants amounts to manufacture. The activity undertaken amounts to manufacture, the burden is on Revenue as held by the Hon ble Apex Court in the case of Collector of Central Excise, Chandigarh v. Steel Strips Ltd. reported in 1995 (77) E.L.T. 248 (S.C.). He further submitted that in the Writ Petition No. 22896 of 1996 of M/s. Amit Steel Pvt. Ltd. Others, the issue came up before the Hon ble Andhra Pradesh High Court transformation of M.S. round bars into bright bars does not amount to manufacture and no Central Excise duty is leviabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption notification was withdrawn, therefore the plea that the activity does not amount to manufacture is not sustainable. As the Commissioner has dealt with issue in detail, therefore he reiterated the findings of adjudicating authority. 6. Heard both sides and considered their submissions. 7. After hearing both the sides, we find that the core issue emerges from the arguments advanced by both sides are that whether the activity of conversion of M.S. round into bright bars amounts to manufacture or not? Although, the activity of conversion of M.S. round into bright bars following the activity of pickling, cutting, drawing, polishing but does not change the identification of the goods i.e. bright bars. As held by the Hon ble Apex Court in the case of Vee Kayan Industries (supra) wherein the Hon ble Apex Court observed the finding of the Tribunal that the appellants have purchased the duty-paid round bars from the market and these bars were drawn through a slight narrow diameter and the bright bars emerged from the narrow die. It was not disputed before the Tribunal nor it is disputed in this Court that Tariff entry 26AA(ia) levies duty on bars. The Tribunal held that passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of difficulty, it would be open to the Excise Authorities to seek a direction requiring the assessee to set out in writing what it does to obtain the articles. Therefore, the lack of evidence has led to the failure of the case of the Excise Authorities . In the case of Commissioner of C. Ex. Chennai-II v. Tarpaulin International reported in 2010 (256) E.L.T. 481 (S.C.) the Hon ble Apex Court has observed that manufacture implies a change, but every change is not a manufacture and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary . There must be transformation, a new and different article must emerge, having a distinctive name character or use . Whenever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity. However, this court in the case of India Cine Agencies v. Commissioner of Income Tax, Madras, [2008 (223) E.L.T. 8 (S.C.)] it was observed that, it is only when the change or a series of changes takes the commodity to the point where commercially it can no longer be regarded as the original commodity but inste ..... X X X X Extracts X X X X X X X X Extracts X X X X
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